2000 PLP 1563 (SCMR)

IRSHAD HASAN KHAN, C.J.

This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the judgment of Lahore High Court, Multan Bench, dated 18-11-1999, passed in Writ Petition No.2149 of 1999.

2. The case of the petitioner is that the impugned order of the High Court whereby the marriage between the parties was dissolved by way of Khula' is wholly without jurisdiction, in that, under the Islamic Law, marriage could only be dissolved with the consent of the parties on the basis of Khula' not at the instance of a Qazi.

3. The case of Mst. Kaneez Fatima respondent herein is that she was married with the petitioner about 14 years back when she was a minor. Relationship between the parties became strained soon thereafter: She hardly lived with the petitioner for 12 days when she was forced to live with her parents and ever since she is living as such. The petitioner was also found to be an addict and a man of immoral character. The petitioner often subjected the respondent to physical torture and cruelty when persuaded by the latter to live a moral and healthy life. He also squandered away the respondent's dowery. Temperaments of the spouses were diametrically opposed to each other.

4. In consequence, the respondent brought a suit against the petitioner for dissolution of marriage on the basis of Khula' before the Judge, Family Court, Mailsi on 7-12-1993, which was dismissed on 22-5-1996. Thereafter, the parties entered into a compromise and the respondent again started living with the petitioner. But soon thereafter, the petitioner began to demand alienation of 4 acres of land in his favour, which the respondent had inherited from her father, and on her refusal to do so she was again beaten and turned out of his house. Upon this, she filed another suit on 25-6-1996 before Judge, Family Court, Vehari. In the plaint, the respondent, .besides what has been stated above, took the plea that she had developed hatred towards her husband and has been living apart from him for the last 9/10 decree for dissolution of marriage on the grounds of Khula.? ??????????? 5.???????? In view of the pleadings of the parties, the learned trial Judge framed the following issues:-- (1) Whether this Court lacks the jurisdiction to hear this case? OPD (2) Whether is hit by res judicata? OPD (3) Whether the plaintiff was subjected to habitual cruelty" OPP (4) Whether the defendant has misappropriated the plaintiff's dowery? (5) Whether the plaintiff is entitled to grant of Khula' ? If, so on what terms ? OPP (6) Relief. After hearing the parties and examining the evidence on record, the learned Judge dismissed the suit vide his order, dated 31-3-1998. The respondent filed appeal befcie the learned Additional District Judge, Vehari, which was also dismissed vide judgment, dated 27-2-1999 with the observation that the .parties should try afresh for reunion and in case of failure, she may take the plea of Khula' through a fresh suit.

6. Being aggrieved, the respondent approached the High Court by means of Writ Petition No.2149 of 1999, inter alia, contending therein that she had appeared as her own witness by supporting her version in the plaint as to her extreme dislike towards the petitioner herein; the parties could not live together within the limits ordained by God Almighty, in that, the petitioner had been living separately for over 13 years, therefore, there was no hope for reconciliation and harmony between the spouses and that the respondent had developed irretrievable hatred towards her

7. The petitioner resisted the petition on the ground that the respondent had earlier filed a suit for dissolution of marriage on the basis of Khula' but the same was dismissed on 7-12-1993.

8. The learned Judge in Chambers after thorough scrutiny of evidence on record took the view that the Courts below failed to consider the evidence on record in its entirety on Issue No.5, in that, the respondent had stated with particularity in the plaint that she cannot live with the petitioner as his wife on account of extreme hatred towards him and to the same effect she made a statement on oath in Court. Consequently, the findings of the Court below on Issue No.5 were reversed by the High Court by allowing the writ petition and decreeing the suit on the basis of Khula.

9. Mr. Rashid Murtaza Qureshi, learned Advocate Supreme Court for the petitioner vehemently reiterated that a Muslim Qazi can grant a suit for dissolution of marriage only on the ground of insanity of the husband of failure to provide maintenance, impotency or where whereabouts of the husband were not traceable. resulting into presumption of his death. He further argued that incompatibility of temperament, dislike or even hatred on the part of the wife for the husband is not a valid ground for Khula' under the Islamic Law. In support of his contention, reliance was placed on Muhammad Umar Bibi v. Muhammad Din (AIR 1945 Lah. 51) and Mst. Sayeeda Khanam v. Muhammad Sami (PLD 1952 Lah. 113). Reliance was also placed ,on an Article by Mr. Muhammad Taqi Usmani (as he then was), now the Hon'ble Judge of the Shariat Appellate Bench of this Court, at page 204 of a book titled "Hela-e-Najiza' Ortoon ka Haqe Tanseekhe Nikah by Maulana Ashraf Ali Thanvi, wherein while commenting upon a decision of this Court in the case of Khurshid Bibi v. Muhammad Amin (PLD 1967 Supreme Court 97), the learned author observed that divorce by way of Khula' can only be effected with mutual consent of the spouses. Reference was also made to a passage from "Jawahar-ul-Hakam" (Parts 1, 11 and III) by Maulana Syed Muhammad Badar Alam at page 160 of the book to the effect:--

10. We have heard Mr. Rasheed Murtaza Qureshi, learned Advocate Supreme Court for the petitioner and Rana Noor Muhammad, learned, Advocate Supreme Court for the respondent at some length and perused the material on record.

11. The controversy raised herein stands concluded by the judgment of this Court rendered in the case of Mst. Khurshid Bibi 'v. Baboo Muhammad Amin (PLD 1967 SC 97), wherein a five-member Bench of this Court explained the well-settled doctrine that marriage among Muslims was not a l sacrament, but in the nature of a civil contract. ??????????? "Such a contract undoubtedly has spiritual and moral overtonesand undertones, but legally, in essence, ii A remains a contract between the parties which can be the subject of dissolution for good cause. In this respect, Islam the Din-ul-Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as' "holy dead-lock". The above i view has been consistently followed by the superior Courts.

12. Also refer Abdul Rahim v. Mst. Shahida Khan (PLD 1984 SC 329), wherein it was observed as follows:-- "...It was found that in case of dislike by wife of her husband, Islam concedes right to wife, in circumstances of extreme discord and where life becomes a torture for both, on account of fixed aversion on part of spouses, to seek dissolution of marriage on ground of Khula'. This right, however, is not an absolute right by which the wife can herself dissolve the marriage but is a controlled right. The success of her right depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God. However, the Court, while coming to a conclusion on this question, shall bear in e mind that it would be more consistent with the letter and spirit of the Qur'an which places the husband and the wife on an equal footing in respect of rights of one against the other to construe the ' classical incident of Sabit-bin Qais as meaning that the person in authority, including the Qazi, can order separation by Khula' even if the husband is not agreeable to that course. Of course, the Qur'anic condition must be satisfied that the husband and the wife cannot live together in harmony and in conformity with their obligations." In the case of Abdul Rahim (supra) it was also observed that the High Court, in its Constitutional jurisdiction, can interfere if convinced that existing C unhappy relations between husband and wife, held out no hope for their living together within limits prescribed by God.

13. In Muhammad Siddique v. Mst. Kalsoom Bibi (1984 SCMR 523), it was held that in a matter involving the matrimonial dispute, if the High Court was convinced after considering all the circumstances of the case, that "the existing unhappy relations between the parties, who are still involved in litigation, hold out no hope for their living together within the limits prescribed by God Almighty", it could direct dissolution of marriage on the basis of Khula?.

14. We have gone through the material on record with the assistance of the learned counsel for the parties. We are convinced that the parties cannot live together within the limits prescribed by God Almighty. The High Court was, therefore, right in allowing the writ petition through a well-reasoned order in the circumstances of the case, which does not suffer from any legal flaw or infirmity warranting interference.

15. In the result, respectfully following the judgment delivered by a Bench of five Judges of this Court in the case of Mst. Khurshid Bibi (supra), we are not inclined to grant leave to appeal in this petition, which is hereby Petition dismissed.